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How Effective has the Hague Convention on the Civil Aspects of International Child Abduction 1980 been in securing the prompt return of an abducted child. (18 October 2010)

By Aynur Duman

The United Kingdom has seen a 50% increase since 1995 in the number of children being abducted. It was in recognition of the alarming numbers of abducted child and to address this problem that The Hague Convention on the Civil Aspect of International Child Abduction 1980 was introduced, providing the international legal community with a framework to safeguard the rights of abducted children.

Under Article 1 of the Convention, the aim is to secure the prompt return of child wrongfully removed to or retained in a Contracting State and to ensure that rights of custody and of access are effectively respected in the other Contracting States. The paramount aim is to act as a return mechanism ensuring the child is returned to the jurisdiction that is able to resolve custody issues.

The Convention is however, by far a perfect mechanism, often with the level at which child abduction cases are heard impacting on the outcome and the time frame for the return of the child. Furthermore, the varying national approaches to implementing the Convention, the lack of Public Funding in some countries and the excessive recourse to the available defences has meant that the Convention has failed in its aim of being a simple procedure for securing the prompt return of an abducted child.

Parents often use the defences permitted under the Convention as a ‘delaying tactic’ frequently appeal summary judgments, leading to the inevitable delay in returning the child, as proved to be the circumstance for the case of Re O conducted by Amanjit Lalli, Partner at Duncan Lewis. Enforcement of return orders has also proven to be problematic, which have resulted in recourse to the draconian measure of obtaining a Collection Order.

Despite the weaknesses of the Convention, it remains to be the only piece of international legislation for the return of an abducted child. An alternative but less efficient remedy for the return of an abducted child is to make an application for a Wardship Order and requesting the return of the child. The effectiveness of this option is dependent on judicial co-operation between states.

The introduction of an international family court may eradicate the shortcomings of the Convention, with the benefit of the court being used for international proceedings. By invoking the criminal aspects of child abduction, rather than providing undertakings not to, may act as a deterrent; resolving the problem of the Convention being deployed as a delaying tactic.